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By PETER SCHAUMBER

Walmart is a company that Big Labor and its allies love to hate. Despite a coordinated media campaign vilifying the company and “hit and run” walk-outs aimed at disrupting operations, Walmart’s 1.3 million employees remain largely beyond Labor’s reach. The projected “nationwide” walk-outs of “thousands of employees” have fizzled. And the fact that Walmart’s new CEO began working for the company in 1984 as a warehouse distribution clerk clearly demonstrates that the unsubstantiated union charge that Walmart workers are trapped in low-level minimum wage jobs is untrue.

(Photo credit: Wikipedia)

The National Labor Relations Board Piles On

The National Labor Relations Board has now entered the fray against Walmart on the side of the protestors and the unions. Last November, the agency’s new General Counsel, Richard Griffin, issued a highly unusual press release. Griffin threatened to file complaints against Walmart unless the company settled the charges filed against it, including charges filed by 19 Walmart employees who claimed they were unlawfully fired in retaliation for walking off the job in a protest over low wages.

Government prosecutors are not supposed to publicly threaten defendants with prosecution if they don’t agree to settle charges filed against them. First, such statements reduce the likelihood of a settlement. And second, they may unfairly bias the public against the employer. This is why the American Bar Association’s Code of Ethics specifically cautions criminal prosecutors not to go public with out-of-court statements after a complaint is filed—much less before, as occurred here—because it may “heighten...the public condemnation of the accused.” Nevertheless, the Board went public against Walmart in a widely misunderstood press release.

The Walmart Complaints Lack Merit

When Walmart refused to settle, the General Counsel followed through on his threat. On January 15, he filed a number of complaints. Their principal allegation is that Walmart “threatened” its employees with reprisals if they engaged in “legally protected strikes.” But the Walmart walk-outs are not legally protected strikes.

Employees as a group can engage in a total strike, a collective refusal to work until specific demands are met. Employees can also engage in a single concerted work stoppage to protest a triggering event, such as being required to work in an unreasonably cold facility.

But employees cannot engage in an “intermittent” strike, a pattern of short repeated work stoppages which fall short of a total strike. Unlike the traditional total strike, the intermittent strike comes at no cost to the striking employees, and it more effectively interferes with the employer’s production. As a result, the strikers “unilaterally dictate their own terms and conditions of employment,” inconsistent with the bargaining process established in the National Labor Relations Act.

A recent General Counsel explained the law as follows:

“Recurrent strike activity is considered to be an unprotected intermittent strike where (1) there are more than two separate strikes, or threats of repeated strikes, and (2) they are not responses to distinct employer actions or problems, but rather part of a this would be more crippling to the and/or would require less sacrifice by employees than a single strike.”

Walmart relied on this principle of Board law, which has been consistently affirmed by the courts, when it told employees in various stores:

“Should you participate in further union-orchestrated intermittent work stoppages that are part of a common plan or design to disrupt and confuse the Company’s business operations, you should expect that the Company will treat any such absence as it would any other unexcused absence.”

The General Counsel Wants the Law Changed

The General Counsel wants to have declared unlawful what Walmart lawfully did when it disciplined its striking workers. Griffin undoubtedly agrees with former recess Board Member Craig Becker, whom he worked with at the AFL-CIO. In the 1994 University of Chicago Law Review, Becker argued that the law should be reinterpreted to protect employees who engage in intermittent strikes.

Big Labor is counting on that reinterpretation. It has turned to large-scale national campaigns—such as those at Walmart and in the fast food industry—to gain exposure, reverse its fortunes, and secure new dues-paying members. Repeated walk-outs are an integral part of these campaigns. They add drama to the protests, garner media attention, and enable a union to more easily convince an employer to recognize the union or at least to remain neutral while the union vies for employee support.

The Obama Board Will Not Disappoint Big Labor

The complaints do not bode well for American businesses. Griffin has begun a process that will end before the agency’s Board, which is controlled by three former union labor lawyers. The Board will undoubtedly vote to affirm the General Counsel and approve the intermittent strike as a weapon that Big Labor can use to destabilize a business and organize its employees.

It will be for the courts or Congress to restore balance to the workplace and prevent damage to the economy.